Foreign Office official's resignation letter reveals that Attorney General did change his mind on legality of Iraq war

By Colin Brown, Deputy Political Editor
24 March 2005

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Documentary evidence has emerged showing that the Attorney General, Lord Goldsmith, changed his mind about the legality of the Iraq war just before the conflict began. The damning revelation is contained in the resignation letter of Elizabeth Wilmshurst, a legal adviser at the Foreign Office, in which she said the war would be a "crime of aggression". She quit the day after Lord Goldsmith's ruling was made public, three days before the war began in March 2003.

The critical paragraph of her letter, published yesterday under the Freedom of Information Act, was blanked out by the Government on the grounds that it was in the public interest to protect the privacy of the advice given by the Attorney General. But last night the contents of the paragraph were leaked, and Tony Blair was facing fresh allegations of a cover-up. There has long been speculation that Lord Goldsmith was leant on to switch his view, and to sanction the war - and confirmation of that would be devastating for the Prime Minister. The Wilmhurst letter stops short of explaining what caused Lord Goldsmith to change his mind.

The revelations come two weeks after it emerged that there had never been a detailed dossier from the Attorney General setting out the case for military action before troops were committed, and that Britain went to war on the basis of nine paragraphs on a single sheet of A4 paper.

Last night's revelations - broadcast on Channel 4 News - showed that Ms Wilmshurst said the Attorney General had initially agreed with the Foreign Office legal team that a war on Iraq would be illegal without a second UN resolution.

In the blanked-out paragraph from her letter of resignation on 18 March 2003, she wrote: "My views accord with the advice that has been given consistently in this office before and after the adoption of UN Security Council resolution 1441 and with what the Attorney General gave us to understand was his view prior to his letter of 7 March. (The view expressed in that letter has of course changed again into what is now the official line)."

The revelations were seized upon by critics of the Iraq conflict. Menzies Campbell, the Liberal Democrat foreign affairs spokesman, said: "The Government blacked out that section not in the public interest but in the government interest. The Government is severely embarrassed by the fact that there is continuing controversy about the legal advice given by the Attorney General and the way in which he arrived at his final opinion."

Clare Short, who resigned from the Cabinet after the invasion, said last night: "I think the Government had to try and cover it up because it's so devastating. The bit that was blocked out shows that the Attorney General changed his mind twice in a matter of days before he gave his advice to the Cabinet when he just said, unequivocally, 'My view is the legal authority for war' and kept from the Cabinet any suggestion that he had had doubts about it." She added: "I didn't think there was anything left that would shock me but to have that in black and white and to know that is what he did is really shocking. He said he wasn't leant on, but he certainly turned head over heels a couple of times."

As efforts to get a second UN resolution were stalling in the approach to the 2003 conflict, Lord Goldsmith produced a lengthy legal opinion arguing that a case could be made for war without a second UN resolution, but it could be open to legal challenge.

On 13 March, he told ministers that war without a UN second resolution was legal. But there have been claims that six days earlier, on 7 March, he presented Tony Blair with a legal opinion in which he warned that military action could be challenged in the courts.

The emergence of Ms Wilms-hurst's allegation is likely to prove to be embarrassing for ministers in the run-up to an expected general election in May.

The Commons is due to rise today for the Easter recess and Mr Blair is due to go to Buckingham Palace to ask for the dissolution of Parliament as soon as MPs finish their holiday, around 4 or 5 April, clearing the way for a general election on 5 May. However, the fresh evidence is certain to lead to calls for Mr Blair and the Attorney General to answer the claims that they have sought to cover up the most damaging claim - that they took Britain to war knowing it to be illegal.

The controversy wrecked an attempt yesterday by Mr Blair to limit the damage from the war in the general election campaign. The Government announced changes to Mr Blair's "sofa style" of government which was heavily criticised in the Butler inquiry into the intelligence failures on the Iraq war and the weapons of mass destruction.

Mr Blair unveiled a series of new intelligence safeguards which are being put in place following the intelligence failures that led Britain to go to war on a false prospectus. But many of the changes were attacked as "too little, too late" by the Government's critics. Intelligence officers were sceptical that Mr Blair would be able to change his style of "government by sofa", based on informal meetings without records being kept.

Labour strategists are hoping that the damage to trust in Mr Blair can be repaired in time to stop the memory of the Iraq war driving Labour voters into the arms of the Liberal Democrats in Labour marginal seats in the general election.

Accepting the recommendations of the Butler report, Mr Blair promised there would be no more ad-hoc meetings with ministers and officials. They will be replaced by proper meetings with notes taken and records kept in the future. Ministers are also to be given a guide on how to assess intelligence, including information on the limitations of reports.If ministers had known the "45-minute" claim had come from an uncorroborated single source, it may not have got into the dossier published in September 2002.

The Prime Minister has also accepted the recommendation that a senior intelligence officer should chair the Joint Intelligence Committee, overseeing reports to ministers, at the end of his or her career. It amounts to a rebuke for Mr Blair, who promoted John Scarlett, the former head of the JIC who approved the "dodgy dossier", to be the head of MI6.

THE WHISTLEBLOWER: AN 'EXCELLENT AND ABLE' LAWYER

For nearly three decades, Elizabeth Wilmshurst, worked diligently and competently in the legal department of the Foreign and Commonwealth Office.

She became a civil servant in the department in her mid-twenties and colleagues described her as an "excellent and able" lawyer, with a notably steady character.

Her efforts and expertise in international law were rewarded in 1997 when she was promoted to the position of deputy head of legal affairs for the FCO. The promotion cemented her position as one of Britain's leading experts on international criminal and diplomatic law. The next year, she received further recognition - she was made a Companion of St Michael and St George, one of the highest honours for diplomats.

During her tenure, Ms Wilmshurst led the UK delegation to set up the International Criminal Court (ICC) in The Hague, served as legal counsellor to the UK's mission to the UN, and gave evidence for the Foreign Office to the House of Commons International Development Committee on the legality of sanctions.

However, as her resignation letter has revealed, she was as impassioned a defender of her beliefs as she was knowledgeable and successful in her arena.

She resigned in March 2003 after defying her political superiors in the Foreign Office by stating her belief that joining the US invasion of Iraq would constitute a violation of international law.

It was a move that would have considerable political reverberations as well as an impact on her professional position.

She was thought to have been prepared to appear as a witness for Katharine Gun, the former GCHQ translator, who was to stand trial for leaking an e-mail concerning a UK-US spying operation. However, the case collapsed last year without her participation.

Ms Wilmshurst, 56, is now using her expertise as head of the international law programme at the Royal Institute of International Affairs, the London think-tank at Chatham House. She is also a visiting professor at University College, London.

Her areas of international law expertise include the use of force, international criminal law and courts, the law of the United Nations and State and sovereign immunity.